The “Joint Defense” Privilege

The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. This privilege allows clients to communicate freely with legal counsel without worry of disclosure through discovery or at trial. Moreover, the joint defense privilege has been recognized as an extension of the attorney- client privilege which gives attorneys and clients alike additional room to share privileged information to third parties without creating a waiver. However, since its recognition, use of the joint defense privilege has created questions in the legal community regarding the discoverability of such information for use against a party to the joint defense in litigation.

In general, the joint defense privilege “extends the attorney-client privilege to any third party made privy to privileged communications if that party ‘has a common legal interest with respect to the subject matter of the communication.’’’ Aiken v. Texas Farm Bureau Mutual Ins. Co., 151 F.R.D. 621, 624 (E.D. Tex. 1993) (citing In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992)). Moreover, the joint defense privilege “encompasses shared communications between various co-defendants, actual or potential, and their attorneys, prompted by threatened or actual, civil or criminal proceedings, ‘to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings’ … ‘or whenever the communication was made in order to facilitate the rendition of legal services to each of the clients involved in the conference.’” Id. at 624.

In Feinberg v. Hibernia Corp., the United States District Court for the Eastern District of Louisiana addressed the joint defense privilege. Feinberg v. Hibernia Corp., 1994 WL 50230, *2 (E.D. La. 1994). In Feinberg, the court found that the joint defense privilege did not apply to the facts presented in the matter. However, the court did not dispute the existence and potential applicability of a joint defense privilege. The same was recognized in a case in the Middle District of Louisiana in Blockbuster Entertainment Corp. v. McComb Video, Inc, 145 F.R.D. 402 (M.D. La. 1992). In Blockbuster, the court also did not apply the joint defense privilege because the parties had not demonstrated the existence of any actual communications among the defense attorneys relating to a joint effort to defend against the plaintiffs’ claims. Id. at 404. Notwithstanding, the Court stated “[c]ertainly one would expect that the defense attorneys in this case would cooperate to some extent because it would be in their mutual interest to do so, but that alone does not establish the existence of any confidential communications which are protected by the attorney client privilege.” Id.

Therefore, Louisiana courts do recognize the joint defense privilege and would enforce the privilege provided the parties can satisfy the requirements of the privilege.

There may be situations that arise in litigation wherein defendants should sign a “joint defense agreement.” When such an agreement is present, the question naturally becomes whether the agreement is privileged or, rather, discoverable to the other parties. There is little to no Louisiana or United States Fifth Circuit jurisprudence discussing whether or not a “joint defense agreement” is discoverable. However, there are other federal district courts that have dealt with the issue.

In Ford Motor Co. v. Edgewood Properties, Inc., the court found that the joint defense agreement at issue was not discoverable because it contained standard language that was not relevant to any claim or defense in the case. Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 428 (D.N.J. 2009). See, e.g., Fort v. Leonard, 2006 WL 2708321, at *3 (D.S.C. September 20, 2006) (finding that the terms of a written or oral joint defense agreement were not relevant or discoverable and that communications amongst counsel were privileged under the common interest rule); Broessel v. Triad Guaranty Insurance Corp., 238 F.R.D. 215, 217 (W.D.Ky. 2006) (holding that joint defense agreements requested by the plaintiff did not have to be produced because they were not relevant to the claim or defense of any party); United States v. Int’l Longshoremen’s Ass’n, 2006 WL 2014093, at *1 (E.D.N.Y. July 18, 2006) (“information concerning joint defense agreements is sensitive, and … disclosure of such information should not be lightly ordered. Put another way, the relevance of the information should be well-established before compelling its disclosure”).

The court in Ford Motor cited another case, Warren Distrib. Co. v. InBev USA L.L.C., that was instructive on this issue. In Warren Distrib., the court denied plaintiff’s motion to compel a joint defense agreement. Warren Distrib. Co. v. InBev USA L.L.C., No. 07-1053, 2008 WL 4371763 (D.N.J. Sept. 18, 2008). The court stated that “[t]he relevancy of a joint defense agreement depends on the language of the agreement.” Id. at *3. The court found the agreement did not contain any substantive business information, and “merely contain[ed] language that parties typically include in joint defense agreements to protect from discovery privileged information revealed to a third party.” Id. The parties to the joint defense agreement, however, are relevant and discoverable. Id.

Thus, while the joint defense agreement is recognized by Louisiana courts, the existence of such an agreement and the parties thereto is not privileged information. Also, when drafting a “joint defense agreement,” it would be prudent to exclude any substantive factual information that may be relevant to a claim in the case to protect against the discoverability of the joint defense agreement.

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